Monday, March 10, 2014

So, the Malaysian Bar has come out with concerns not so much of the court's decisions, but of the unfairness in the changing and expediting the date of the Appeal, and other matters....

It wonders why the hearing dates were brought forward? Normally, after conviction and before sentencing, courts will adjourn cases for about a week to allow for lawyers to prepare for Mitigation, i.e. reasons that should be considered by court before sentencing - here 1 hour was given. Read the statement of the Malaysian Bar below...Also relevant is an earlier post:- 'BOYCOTT' Parliament is silly - Why?Because Opposition leader got convicted by court?

Press Release | Conviction and Sentence of Dato’ Seri Anwar Ibrahim for
Sodomy II: Justice is Not Only a Fact to be Established; It Must Also be
Seen to be So Established

This item has been updated since initial publication.

The
Malaysian Bar is deeply troubled by the conviction and sentence to five
years’ imprisonment of Dato’ Seri Anwar Ibrahim by the Court of Appeal,
for what was essentially consensual sex between two adults.

Dato’ Seri Anwar Ibrahim was convicted and sentenced under section 377B, read with section 377A, of the Penal Code.

Section
377A of the Penal Code criminalises sodomy and oral sex (fellatio).
Section 377B provides that whosoever voluntarily commits the acts
described in section 377A shall be punished with imprisonment for a term
which may extend to twenty years, and shall also be liable to whipping.
These provisions make no distinction between heterosexual and
homosexual consensual sexual acts, and are thus applicable to both.

A
law is only good and just if it is consistently and equally applied and
enforced. It is extraordinary that Dato’ Seri Anwar Ibrahim has been
prosecuted and convicted twice, in a country that has rarely seen a
prosecution and/or conviction for an offence of consensual sexual acts
between adults under section 377A, read with section 377B, of the Penal
Code.

This
glaring anomaly and inconsistency brings the administration of justice
into disrepute. It also fuels a perception that Dato’ Seri Anwar
Ibrahim is being persecuted, and not prosecuted.

The
charge against Dato’ Seri Anwar Ibrahim is based on an archaic
provision of the Penal Code, and should never have been brought. The
case has unnecessarily taken up judicial time and public funds, and has
muddied the waters of our justice system.

The
Malaysian Bar also has grave misgivings with respect to the manner and
timing in which the appeal was handled. In particular, we are shocked
by the manner in which mitigation and sentencing proceeded.

The
Malaysian Bar makes no comment at present as to the grounds for the
reversal by the Court of Appeal of the acquittal by the High Court in
January 2012 of Dato’ Seri Anwar Ibrahim (“Respondent/Defendant”), and
his present conviction and sentence by the Court of Appeal, as no
written substantive grounds have been proffered as yet, save to say that
there appears to be doubt and reservations as to the integrity of the
DNA evidence in the case.

However, there are several aspects of this case that raise questions or concerns:

(1)The
haste with which the appeal proceeded in the Court of Appeal. No doubt
the appeal had been pending since about July last year, but time had
been taken with intervening applications on several issues and appeals
arising therefrom. It appears that the Respondent/Defendant had been
notified on 27 February 2014 that the substantive appeal was to be heard
on 6 and 7 March, thus providing his legal counsel with only seven
days’ notice to prepare for a criminal appeal arising from a lengthy
trial that had taken many weeks and involved about 32 witnesses,
including expert evidence;

(2)This
was despite counsel for the Respondent/Defendant having informed the
court that he was not available on those dates, as he was scheduled for
other cases in court;

(3)It
appears that about two weeks before the appeal was heard a registrar
from the registry of the Court of Appeal had informed the office of
Karpal Singh, the Respondent/Defendant’s counsel, to reserve 7 to 10
April 2014 as the proposed hearing dates for the appeal. The
Respondent/Defendant’s counsel apparently agreed to these dates;

(4)It
appears that these proposed dates when the Respondent/Defendant’s
counsel was available were subsequently abandoned and replaced with much
earlier dates;

(5)If
this is true, then questions arise in the mind of the public as to why
the Court of Appeal brought forward the appeal to be heard, when the
originally contemplated dates in early April had already been agreed to
by the Respondent/Defendant, and would have provided the
Respondent/Defendant, facing a possible sentence of 20 years’
imprisonment, more time to prepare for the appeal;

(6)The
appeal was heard on 6 and 7 March 2014. It is reported that each day’s
proceedings carried into the early hours of the evening, ie between
6:00 pm to 7:00 pm. Although this is not unheard of, it is nevertheless
rare;

(7)It
is not uncommon for an appellate court to reserve judgment for a few
days or months before handing down a decision, particularly where the
proceedings in the trial court have been lengthy, the evidence
substantial and the issues weighty;

(8)In
this instance, the Court of Appeal had, at the conclusion of
submissions by the parties on 7 March 2014, taken approximately 90
minutes to consider the matter, and then rendered a unanimous decision
in reversing the acquittal by the High Court and finding the
Respondent/Defendant guilty, at approximately 5:00 pm the same day;

(9)5:00
pm is when the court usually adjourns for the day. On this occasion,
the Court of Appeal and the prosecution insisted on proceeding with
hearing mitigation and sentencing;

(10)The
Respondent/Defendant’s counsel requested an adjournment until the
following week, beginning 10 March 2014, to address the court on
mitigation and sentencing, and to obtain a medical report concerning the
Respondent/Defendant’s medical condition, which would be relevant in
considering the sentence to be imposed. The Court of Appeal refused
this request, and instead gave counsel one hour to prepare for
mitigation and sentencing;

(11)Upon
reconvening after about one hour’s recess, the Court of Appeal and the
prosecution accepted counsel’s contention that the Respondent/Defendant
suffers from medical conditions such as back pains, high blood pressure,
and a heart ailment. They accepted that these were relevant to
sentencing, but refused to allow time for a medical report to be
prepared and provided to the court.

(12)The
Court of Appeal had thus denied itself relevant medical information
pertaining to the particulars or peculiarities (if any), and extent of,
the Respondent/Defendant’s medical condition before considering the
appropriate sentence to be imposed; and

(13)The Court of Appeal pronounced a sentence of five years’ imprisonment, and the proceedings concluded at approximately 7:00 pm.

These matters raise many questions, cause much speculation, and lend to the perception that justice may have been hijacked.

The
questions to be answered, in the mind of the public, are thus, “Was the
cause of justice best served by the manner and timing in which this
appeal was handled?” and, “Was the administration of justice compromised
or interfered with?”

The
sanctity of the administration of justice and the independence of the
Judiciary are intertwined, and essential for upholding the rule of law
and instilling public confidence. Justice and independence are not only
facts to be established; it is imperative that they are seen to be so
established.

It
is heart-rending, for those who sacrifice and work hard in good faith
to protect and defend the administration of justice, and to maintain and
promote the independence of the Judiciary, when public confidence in
these two precepts may be shaken or in jeopardy.

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